Constitutional theorists today are confronting a problem that always lurks, but rarely shows its potential quite this clearly. The problem is that theoretical arguments tend to cycle as the ideological composition of institutions changes. Constitutional theory, like constitutional law itself, cannot avoid an ideological cast. Thus, when the Supreme Court was liberal, conservatives argued for restraint and originalism, while progressives sought to justify activist judicial review. In response to today’s conservative Court, progressive and conservative scholars have switched sides. Constitutional theories designed at one time, under one set of circumstances, may have less appeal at a later time, under different circumstances. Yet, can something really be called a “theory” if its application depends on the ideology of the actors applying it? This article explains that constitutional theorists confront a very real problem. If theory shifts in response to institutional ideological change, it runs the risk of looking like scholarly advocacy rather than theory. On the other hand, if theory ignores present institutional agendas, it runs the risk of irrelevance. Throughout history, constitutional scholars have confronted both of these difficulties. Although the problem is a difficult one, the article explains that there are approaches that can ameliorate it. Theorists should demonstrate humility, both about the empirical basis of their claims, and about what the future might bring. In particular, theorists ought to consider the possibility of institutional change, and develop their theories with this in mind. Contextualized and narrower theories, and theories that avoid recommending structural change, are more likely to stand the test of time.
Date of Authorship for this Version
public law and legal theory
Friedman, Barry, "The Cycles of Constitutional Theory" (2004). New York University Public Law and Legal Theory Working Papers. Paper 1.